Narayanbhai Dhulabhai Patel, Mehsana v. The Income tax Officer,Paten Ward,, M

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI N.S.SAINI ACCOUNTANT MEMBER DATE OF HEARING: 19.05.2010 DRAFTED ON:19.05.2 010 ITA NO.522/AHD/2008 ASSESSMENT YEAR : 2004-2005 NARAYANBHAI DHULABHAI PATEL MARKET YARD KUKARWADA VIJAPUR MEHSANA. VS. INCOME TAX OFFICER PATAN WARD MEHSANA. PAN/GIR NO. : ABJPP 9619E (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI J.M.TRIVEDI RESPONDENT BY: SMT. NEETA SHAH SR. D.R. O R D E R PER N.S.SAINI ACCOUNTANT MEMBER :- THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-GAN DHINAGAR AHMEDABAD DATED 14.12.2007 BY TAKING THE SOLE GROU ND OF APPEAL AS UNDER: 1. THAT THE LEARNED I.T.O. ERRED IN LAW AND ON FA CTS IN LEVYING AND LEARNED CIT(A) ERRED IN LAW AND ON FACT S IN CONFIRMING LEVY OF PENALTY OF RS.30 000 U/S.271(1)(B) OF THE ACT ON THE REASON STATED IN RESPECTIVE ORDERS WITHOUT APPRECIATELY FACTS OF THE CASE AND EXPLANATION OF THE APPELLANT. - 2 - 2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE PENALTY OF RS.30 000/- WAS LEVIED UNDER SECTION 271(1)(B) OF T HE ACT FOR NON COMPLIANCE WITH THE NOTICES ISSUED UNDER SECTION 14 3(2) AND 142(1) BY THE LEARNED ASSESSING OFFICER. 3. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE POINTED OUT THAT IN THE QUANTUM APPEAL ALL THE ADD ITIONS MADE IN THE ASSESSMENT WERE SET ASIDE BY THE TRIBUNAL AND I N THE CONSEQUENTIAL ORDER PASSED BY THE LEARNED ASSESSING OFFICER ON SET ASIDE BY THE TRIBUNAL THE LEARNED ASSESSING OF FICER HAS ACCEPTED THE INCOME OF THE ASSESSEE AT THE VERY SAM E FIGURE AT WHICH IT WAS DISCLOSED IN HIS RETURN OF INCOME. IT IS SUBMITTED THAT ON THE ABOVE FACTS IN VIEW OF THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ITO VS. ASHOK SURI (199 7) 58 TTJ (DEL) 162 PENALTY UNDER SECTION 271(1)(B) IS NOT E XIGIBLE IN THE INSTANT CASE. 4. WE FIND THAT THE TRIBUNAL IN THE ABOVE CASE HAS HELD THAT IN VIEW OF THE FACT THAT THERE IS NO TAX DUE ON ASSESS MENT AFTER CONSIDERING RELIEF ALLOWED IN APPEAL THE DY.C.I.T. (A) WAS RIGHT IN CANCELLING THE PENALTY LEVIED UNDER THE THREE SECTI ONS INCLUDING SECTION 271(1)(B) OF THE ACT. THE LEARNED DEPARTME NTAL REPRESENTATIVE COULD NOT CONTROVERT THE ABOVE SUBMI SSIONS OF THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE A ND COULD NOT CITE ANY CONTRARY DECISION. WE THEREFORE RESPECTFU LLY FOLLOWING THE ABOVE DECISION OF THE TRIBUNAL DELETE THE LEVY OF PENALTY - 3 - UNDER SECTION 271(1)(B) OF RS.30 000/-. THUS THE A PPEAL OF THE ASSESSEE IS ALLOWED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 21 ST DAY OF MAY 2010. SD/- SD/- (BHAVNESH SAINI) ( N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT M EMBER AHMEDABAD; ON THIS 21 ST DAY OF MAY 2010 PARAS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS) GANDHINAGAR AHMEDABAD. 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 19.05.10 ----------------- -- 2. DRAFT PLACED BEFORE AUTHORITY 20.05.10 ------- ------------ 3. DRAFT PROPOSED & PLACED 20.05.10 -------------- ----- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED 20.05.10 ------------- ------ JM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO P.S 20.05.10 ----------- --------- 6. KEPT FOR PRONOUNCEMENT ON 21.05.10 ------------ -------- 7. FILE SENT TO THE BENCH CLERK 21.05.10 --------- ----------- 8. DATE ON WHICH FILE GOES TO THE ---------------- -------------------- 9. DATE OF DISPATCH OF ORDER ---------------- --- ------------------